In a decision filed October 6, 2016 (no. 91475-3), the Washington Supreme Court held that local governments planning under the GMA cannot rely on Department of Ecology standards regarding exempted wells, but instead must require applicants for single family residences and other residential developments to prove that water is “legally available” before a building permit or subdivision application can be approved.

The dissent characterized the effect of the majority’s holding as barring counties from granting building permits that rely on permit-exempt wells, and imposing “massive and likely insurmountable” burdens on landowners who will likely have to hire costly experts or undertake complex litigation to demonstrate to county review authorities, on a site-by-site basis, that permit-exempt wells will not impair senior water rights (including proof regarding impacts on minimum instream flows).